WIPO to Convene a Diplomatic Conference in Morocco to Finalise TVI

This comes about five years after a team of about ten of us sat down in the offices of Knowledge Ecology International in Washington D.C. to draft the first cut of the Treaty.

Even as late as December 17, it was uncertain as to whether the outcome would be positive, particularly as the United States was fixated on the word "instrument" and not "treaty". At one point during the EGA it was rumored that the US and the EU were insisting on a "kill switch" in the decision document of the Extraordinary General Assembly. Essentially the US and the EU were apparently pushing for wording in the decision text stating that if the text of the Treaty was not fully agreed by the end of the upcoming WIPO Standing Committee on Copyright and Related Rights in February, then the diplomatic conference was off. Luckily none of this type of wording was reflected in the decision of the EGA. The EU was insisting on a non-binding instrument as opposed to a treaty till November this year when they finally capitulated due to the extensive pressure applied internally by blind groups such as the European Blind Union and the Royal National Institute of Blind People in the United Kingdom.

However, it is not smooth sailing from here on since there are still some very critical issues to be resolved in the text of the Treaty. Possibly the most critical issue from the perspective of blind groups is the outstanding issue of commercial availability. The European Union and the United States insist that the Treaty should apply only when works in accessible formats such as Braille or Daisy are not commercially available. The contentious provision in the Treaty in relation to export of accessible format copies is the following:  "The Member State/Contracting Party may limit said distribution or making available of published works which, in the applicable accessible format, cannot be otherwise obtained within a reasonable time and at a reasonable price, in the country of importation." There is also a similar clause with respect to national exceptions as well.

The problem that we have with this clause is that it places the burden on exporting organizations to determine, prior to export, whether a work is available in an accessible format in the importing country within a "reasonable time" and "reasonable price". In reality, this will be impossible for organizations to verify this position with any degree of certainty without spending substantial amounts of money or dedicating significant resources for this. As a result the organizations will not export accessible format copies because they are nervous about copyright violation thereby meaning that the treaty will not be used in reality. Obviously from our perspective there is no point in having a treaty which cannot be used to benefit the millions of persons with visual impairment.

Another outstanding issue that is crucial to us is that a beneficiary (such as a visually impaired person) in one country should be able to import accessible format copies directly from organizations abroad. The European Union does not want to permit this and insists that export and import should only be between organizations. The position of the European Union will be counterproductive because it will add too much burden on organizations in developing countries to serve their disabled populations.

We get the opportunity to fix these issues during the next session of the Standing Committee meeting in February 2013. If required there could another session called to sort out text related issues before the diplomatic conference in June.

Ultimately, the success or failure of the Treaty will boil down to whether the US and the EU actually end up ratifying the Treaty. After all, they have the largest collections of material in accessible formats which we need to import into India. The Hathi Trust in the United States has approximately 10 million books in accessible formats which will be invaluable for the visually impaired community in India. Given the recent rejection of the United States of the United Nations Convention on the Rights of Persons with Disabilities it remains to be seen what the future holds.

Rahul Cherian is the legal advisor to the World Blind Union on the Treaty and is the founder of the Inclusive Planet Centre for Disability Law and Policy